Citation Nr: 9918807 Decision Date: 07/09/99 Archive Date: 07/20/99 DOCKET NO. 90-01 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for multiple sclerosis and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hydrocephalus and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from August 1963 to July 1966. He served on active duty for training from September 12 to September 27, 1981, and from July 10 to July 25, 1982. This matter previously came to the Board of Veterans' Appeals (Board) on appeal from a November 1987 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In a decision dated in September 1988, the Board denied the veteran's claims of entitlement to service connection for hydrocephalus and multiple sclerosis. In a June 1989 rating decision, the RO continued the denial of service connection for hydrocephalus and multiple sclerosis. The veteran appealed, and in a decision dated in September 1990, the Board denied the veteran's claims. In January 1992, the United States Court of Veterans Appeals (United States Court of Appeals for Veterans Claims since March 1, 1999) (Court) granted the unopposed motion of the Secretary of Veterans Affairs (Secretary) for remand of the case to the Board, and the Court vacated the September 1990 Board decision. In July 1992, the Board determined that the veteran had not submitted new and material evidence to reopen his claims of entitlement to service connection for hydrocephalus and multiple sclerosis. In May 1993, the Court granted a motion of the Secretary for remand in this case and vacated the 1992 Board decision. In March 1994, a Hearing Officer at the RO found that new and material evidence had been added to the record, and after review of all the evidence denied the claims. The veteran continued his appeal. In a decision dated in May 1995, the Board determined that subsequent to its September 1988 decision, new and material evidence had not been submitted to reopen the veteran's claims. In its analysis, the Board used the criteria set forth by the Court in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) for the test it applied to determine whether evidence was material. The veteran appealed the Board decision. In its October 1998 order, the Court noted that the opinion of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) invalidated the Colvin criteria for determining materiality to reopen a previously denied claim. The Federal Circuit found that VA's regulation on reopening, 38 C.F.R. § 3.156(a), was a reasonable interpretation of the materiality requirement in 38 U.S.C.A. § 5108 and governed decisions on whether to reopen previously disallowed claims. The Court vacated the May 1995 Board decision and held that in light of Hodge, remand was necessary in order for the Board to apply 38 C.F.R. § 3.156(a) and Hodge. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for hydrocephalus and, if so, whether the reopened claim should be granted is addressed in the remand at the end of this action. FINDINGS OF FACT 1. In a decision dated in September 1988, the Board denied service connection for multiple sclerosis. 2. Evidence added to the record since the September 1988 Board decision includes evidence which is neither duplicative nor cumulative of evidence previously of record and is sufficiently significant that it must be considered to fairly decide the claim for service connection for multiple sclerosis. 3. The claim for service connection for multiple sclerosis is plausible. CONCLUSIONS OF LAW 1. Evidence received since the September 1988 Board decision denying entitlement to service connection for multiple sclerosis is new and material, and the claim for service connection for multiple sclerosis is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1998). 2. Evidence of a well-grounded claim for service connection for multiple sclerosis has been submitted. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the law, service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1998). The term active service includes active duty and also includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6 (1998). In addition, service connection for multiple sclerosis may be established on a presumptive basis if the disease is manifest to a degree of 10 percent or more within 7 years after separation service. 38 U.S.C.A. §§ 1101(3), 1112(a), 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1998). In a decision dated in September 1988, the Board denied service connection for multiple sclerosis. Evidence of record included service medical records. The veteran's neurological system was evaluated as normal at his enlistment examination in July 1963 and at his separation examination in May 1966. There were no pertinent complaints recorded in the Report of Medical History section of the examination report on either occasion. Chronological service medical records for the veteran's period of active service from 1963 to 1966 include no complaint, finding or diagnosis related to multiple sclerosis. Other evidence of record in September 1988 included clinical records from a Dr. Hansen dated from April 1978 to March 1981 showing that the veteran complained of malaise and feeling tired in the morning and also showing that the physician talked with the veteran concerning decreased libido. Dr. Hansen listed malaise and depression as among the veteran's problems and in August 1978 prescribed Elavil. In January 1979, Dr. Hansen noted that the veteran had stopped taking Elavil. Also of record was a statement dated in September from Gary A. Babcoke, M.D., who reported that he first treated the veteran in September 1982 and that the veteran's problems from September 1982 to September 1983 were weight loss and loose stool; Dr. Babcoke said that test results were within normal limits. He also stated that he noted a neurological disorder in late November 1983 and referred the veteran to a Dr. Cohen. In a December 1983 letter to Dr. Babcoke, Hyman L. Cohen, M.D. stated that he had examined the veteran the previous day. He stated that the veteran had ataxia, walked on a broad base and had difficulty with tandem walking. He said the veteran's optic discs were slightly pale. In a history and physical examination report from Porter Memorial Hospital concerning hospitalization in December 1983, Dr. Cohen stated that the veteran gave a history of difficulty in walking for about two years. The veteran said his legs gave out and his right leg kicked out to the right involuntarily at times. He also complained that his legs were stiff and weak and that they jerked at times. The veteran noted that he had developed difficulty in writing and printed as the result. The veteran also reported that he felt generally weak and had occasional leg cramps. He said he had occasional trouble with control of bowel and bladder during the past year and had increased frequency. The veteran reported he had noted a memory deficit. His mood was reportedly different in that his affect seemed to be more flattened. On examination, the veteran walked on a broad base. He had difficulty with tandem walking, and the right foot turned out somewhat. Examination of the cranial nerves revealed that the disks were slightly pale. Dr. Cohen stated that a computed tomography (CT) scan the prior day revealed a hydrocephalus, most likely of the obstructive type. In a letter dated in February 1984, Antonio D. Zelaya, M.D., reported to Dr. Babcoke that the veteran had a ventriculoperitoneal shunt put in in mid-December 1983 because of adult onset hydrocephalus. The physician stated the veteran's ataxia was a lot better, but weak legs were still a significant problem. He said that weakness was most likely secondary to stretching of the cortex spinal tracts by the enlarged ventricles. In a March 1984 letter, Dr. Zelaya said that the strength in the veteran's legs was better and his general neurological examination was unremarkable. The record also included a February 1985 letter to Dr. Babcoke from Lalit B. Savla, M.D., who stated he had examined the veteran in December 1984. During the visit, the veteran mentioned that his right leg gave out more frequently and during walking he kicked out to the right involuntarily. The veteran reported his symptoms of frequency and dribbling were more noticeable and there were some lapses in his recent memory. Dr. Savla stated that the veteran's present symptomatology raised the question regarding adequate functioning of the shunt or that one should consider the etiology of demyelinating diseases. Also of record was a May 1985 letter from Frederick E. Pfeiffer, M.D., of the Mayo Clinic who reported that he had conducted an evaluation of the veteran in April 1985. Dr. Pfeiffer noted that the veteran had developed symptoms of depression, impotence and fatigue three years earlier. He also noted that two years earlier progressive right leg incoordination developed and that a CT scan ultimately revealed evidence of hydrocephalus. Dr. Pfeiffer noted that shunting did not improve the veteran's symptoms and that since that time he had developed difficulty in controlling his right arm and urinary urgency. He stated that test results taken together with the veteran's clinical findings were all diagnostic of demyelinating disease and that the most likely cause of such a demyelinating disease would be multiple sclerosis. Dr. Pfeiffer stated that he thought that the hydrocephalus had been asymptomatic and was only discovered because CT scanning was performed due to the symptoms of multiple sclerosis. At a VA examination in October 1987, the veteran related a history of progressive weakness of his lower extremities for years. He said he later had easy fatigability and loss of coordination and balance. He reported that he had been diagnosed with early multiple sclerosis and hydrocephalus. He also related that work-up at Mayo Clinic in 1984 confirmed the diagnosis of multiple sclerosis. On examination, the veteran's gait was ataxic and broad based. He had difficulty tandem walking, and his balance and coordination were poor. Strength in the lower extremities was 3/5. The diagnosis included multiple sclerosis. At a hearing at the RO in March 1988, the veteran testified that he went on a two-week National Guard active duty drill in the summer of 1982. He testified that during a four-mile march he noticed extreme fatigue and incoordination in his right leg, with his right leg kicking out to the side. He testified that he had difficulty completing the march. He testified that he did not report for treatment at that time because he thought the weakness and problems with his right leg were due to a fracture many years earlier. He testified that after the two-week drill, he continued with a fitness program, but instead of getting stronger, he continued to have problems with weakness in his legs and the turning out to the side. He testified that he went inactive with the National Guard in 1983 because of problems with his right leg incoordination and extreme fatigue. He testified that at that time he saw an orthopedic doctor, Dr. Olsen, who took an X-ray and noted a healed compound fracture of his leg. He testified that in the summer of 1984, Dr. Savla diagnosed him as having multiple sclerosis. At the hearing, the veteran testified that prior to his active duty period in 1982 he had not noticed the fatigue, weakness and incoordination of his right leg, but had noticed it constantly since then. The veteran testified there was no doubt in his mind that multiple sclerosis manifested itself while he was serving on active duty with the National Guard in the summer of 1982. His representative argued that the veteran's active duty for training in the National Guard either hastened the onset of the veteran's multiple sclerosis or severely aggravated any multiple sclerosis that might have been developing at the time. At the March 1988 hearing, the veteran's wife testified that when he came back from his two weeks of active duty in 1982, the veteran's leg was weak and he could not walk. She testified that she sometimes participated with the veteran in his fitness program after his drill period. She testified that the veteran complained of fatigue and she noticed problems with his leg including a limp. She testified that she noticed this from the time he came back in 1982 until the veteran stopped his fitness program. In its September 1988 decision, the Board denied entitlement to service connection for multiple sclerosis. The Board found that multiple sclerosis was not manifested during the veteran's active service or active duty for training, and the Board further found that multiple sclerosis was not present to a compensable degree during the seven-year period after active service. Based on these findings, the Board concluded that the veteran did not have multiple sclerosis that was the result of disease or injury incurred in or aggravated by service and further concluded that multiple sclerosis could not be presumed to have been incurred in service. Generally, when the Board disallows a claim, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the September 1988 Board decision includes a May 1999 memorandum from Craig N. Bash, M.D. In his memorandum, Dr. Bash, a neuroradiologist, who is Assistant Professor of Radiology at the Uniformed Services University of Health Sciences and Associate Director of Medical Services, Paralyzed Veterans of America, stated that he had reviewed the veteran's claims file, including his service medical records and private and VA medical records. Dr. Bash then stated his impression and said that given the events described by the veteran and his witnesses, it appeared likely the exercise in the heat of July 1982 caused the veteran's multiple sclerosis to manifest and caused a chronic increase in the level of disability. Dr. Bash went on to say that one current theory suggested the predilection to develop multiple sclerosis might begin during the formation of the myelin sheath. He said that subsequent events then continually degrade the insulating effect of the myelin sheath producing debilitating symptoms that become clinically apparent. Dr. Bash stated it was therefore likely that multiple sclerosis was present when the veteran reported for training in 1982. Dr. Bash said that some of the veteran's symptoms reported prior to this time may or may not have been related to multiple sclerosis, but the diagnosis of multiple sclerosis would not then have been justified because symptoms would be sub-clinical and there was no clear documentation of neurologic dysfunction at different locations at different times. He then said it appeared the exercise in the heat of the July 1982 training period caused the multiple sclerosis to exacerbate and to remain at clinically significant levels which were noticeable by witnesses who observed weakness and gait alteration from that time forward. Dr. Bash said that the multiple sclerosis appeared to have progressed and subsequently led the veteran to seek medical care, leading to the diagnosis of multiple sclerosis. The medical evidence before the Board in September 1988 included no medical evidence showing a diagnosis of multiple sclerosis until years after the veteran's period of active duty for training in 1982 and no medical opinion suggesting that the multiple sclerosis was manifested during the period of active duty for training in 1982. Therefore, the May 1999 memorandum from Dr. Bash expressing his medical opinion that the veteran's multiple sclerosis was present when the veteran reported for active duty for training in July 1982 and that the multiple sclerosis was worsened by this period of active duty for training is clearly new and material. Accordingly, the claim is reopened. The Board notes that although the veteran has not waived his right to have the May 1999 memorandum initially considered by the RO, referral of this evidence to the RO for issuance of a supplemental statement of the case is not required since the Board has granted reopening of the claim. See 38 C.F.R. § 20.1304 (1998). Having determined that new and material evidence has been presented to reopen the claim of entitlement to service connection for multiple sclerosis, it next must be determined whether the veteran's claim is well grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence. See Elkins v. West, 12 Vet. App. 209, at 218-19 (1999) (en banc). A well-grounded claim is a claim that is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a direct service connection claim to be well grounded, there must be: a medical diagnosis of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. Where the determinative issue involves medical causation or diagnosis, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). A claim also may be well grounded if the condition is observed during service, continuity of symptomatology is demonstrated thereafter and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 497 (1997). The record contains medical evidence establishing that the veteran has multiple sclerosis and medical evidence supportive of the veteran's contention that the multiple sclerosis was aggravated during the period of active duty for training in July 1982. Therefore, the Board concludes that the claim for service connection for multiple sclerosis is well grounded. ORDER New and material evidence having been submitted, reopening of the claim for service connection for multiple sclerosis is granted. REMAND Having determined that new and material evidence has been presented to reopen the claim of entitlement to service connection for multiple sclerosis, and having determined that the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a), the next step is to evaluate the merits of the claim. Elkins at 218-19. This may be done only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. Id. The veteran has contended that his multiple sclerosis was either aggravated or became manifest during his active duty for training, and he has contended in the alternative that multiple sclerosis became manifest within the seven-year presumptive period following his separation from active service in 1966. At the February 1994 hearing, the veteran testified concerning medical examinations he received in the years after his first period of service. He testified that in 1966, after leaving service, he had a physical examination at Westville for employment with the State of Indiana. He also testified that in 1968 or 1969 he went to work at Hamlet Corporation and he was certain a physical examination was done. Reports of these physical examinations could provide information pertinent to the veteran's claim and should be obtained. It is the opinion of the Board that a current VA examination and an additional medical opinion as to etiology of the veteran's multiple sclerosis would facilitate its decision. The veteran has presented a well-grounded claim for service connection for multiple sclerosis, and he is entitled to a thorough and contemporaneous medical examination and opinion that discusses the etiology of his claimed disability. See Pond v. West, 12 Vet. App. 341 (1999); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The remaining issue before the Board is whether new and material evidence has been submitted to reopen a claim for service connection for hydrocephalus. As outlined in the Introduction, in its September 1988 decision the Board denied service connection for hydrocephalus. The subsequently received evidence includes a letter from the veteran's first wife, which was apparently initially associated with the veteran's claims file in June 1995. This evidence has not been considered by the RO, and the veteran has not waived his right to have this evidence initially considered by the RO. The Board will, therefore, return the case to the RO for consideration of this evidence with respect to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hydrocephalus. See 38 C.F.R. § 20.1304. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the names, addresses and approximate dates of treatment for all health care providers, VA and non-VA, from whom he has received treatment or evaluation for multiple sclerosis or hydrocephalus at any time since service, including before, during and after his periods of active duty for training in September 1981 and July 1982. The RO should request that in his response the veteran provide the name and address of the examiner or examining facility in Westville where he had a physical examination in 1966 for employment with the State of Indiana. The RO should also request that, if possible, the veteran provide information sufficient to obtain the report of the physical examination he recalls having in 1968 or 1969 when he went to work at Hamlet Corporation. With any necessary authorization from the veteran, the RO should attempt to obtain copies of records identified by the veteran, which have not been obtained previously. 2. Then, the RO should arrange for a VA neurology examination to determine the nature and extent of the veteran's multiple sclerosis. All indicated studies should be performed. The claims file must be made available to the physician for review. The RO should request that the physician perform a detailed review of the materials in the claims file, including an excerpt from McAlpine's Multiple Sclerosis, 2nd Ed., W.B. Matthews, Churchill, Livingstone, Oxford, UK, 1991, and the May 1999 memorandum prepared by Craig N. Bash, M.D. The physician should be requested to then provide an opinion, with complete rationale, as to the etiology of the veteran's multiple sclerosis. The physician should state specifically his or her opinion as to whether it is at least as likely as not that the veteran's multiple sclerosis had its onset during the veteran's active duty for training in July 1982 or was caused or chronically worsened by the period of active duty for training in July 1982. The examination report and opinion must reflect that the physician has reviewed the claims file. 3. Thereafter, the RO should review the claims file and ensure that all development actions, including the neurology examination and physician's opinion, have been conducted and completed in full. The RO should undertake any other indicated development and then adjudicate, on a de novo basis, the reopened claim of entitlement to service connection for multiple sclerosis. In addition, the RO should review all evidence added to the record since the issuance of the supplemental statement of the case in November 1994, including the aforementioned letter from the veteran's first wife. Based on that review, the RO should readjudicate whether new and material evidence has been submitted to reopen the claim for service connection for hydrocephalus with application of 38 C.F.R. § 3.156(a) in light of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). See Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case, and the veteran and his representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. This case must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals